COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-176-CR
NATHAN DARRELL NEIGHBORS APPELLANT
A/K/A NATHANN HERCULES
NEIGHBORS
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
Appellant Nathan Darrell Neighbors a/k/a Nathann Hercules Neighbors
appeals his felony conviction of aggravated robbery with a deadly weapon. In
three points, appellant argues that the evidence was legally and factually
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… See T EX. R. A PP. P. 47.4.
insufficient to support his conviction and that the trial court erred by refusing
to submit a lesser included offense charge of robbery to the jury. We affirm.
II. Background Facts
On March 15, 2003, Paradise Liquors’s owner Delaware Wafayee and his
employee, Lorenzo Corral, were locking the doors after closing when a man,
who was wearing a ski mask, approached Wafayee from behind with a gun and
ordered him to open the door and disarm the security system. The man then
forced Wafayee and Corral to the back office where the safe was located.
After Wafayee opened the safe, the man put down the gun and began to stuff
the cash in a bag. Corral saw the gun on the ground, lunged for the weapon,
and began to struggle with the man. Corral kept holding the weapon and hit
the man with the butt of the gun, which caused the man to bleed profusely.
During the struggle, the man’s mask also came off. While Corral and the man
were wrestling for the gun, Wafayee grabbed a nearby champagne bottle and
hit the man on the head seven or eight times. Wafayee then ran out of the
office to press the panic button, and Corral quickly followed still holding the
gun. While Wafayee called 9-1-1 and Corral watched for the police by the
entrance, the man, who was bleeding from his head and face, emerged from
the office and walked towards the door. Although Wafayee could tell that the
man was a black male, neither he nor Corral could clearly see his facial features
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because he was covered in blood. Corral pointed the gun at the man, but the
man told Corral that he was leaving no matter what so he had better shoot him.
Corral pulled the trigger but nothing happened, and the man left the store.
Officer Sylvester Brown of the Arlington Police Department arrived shortly
thereafter, but he could not locate the man. Officer Robert Petty collected the
suspect’s gun, and Investigator Kathy Isbell collected the suspect’s ski mask,
a sample of his blood, and some of his scalp tissue with hair. Detective Richard
Daniel Nutt entered the DNA evidence obtained from the samples into the
Combined DNA Indexing System (CODIS)—a DNA database that compares
unknown DNA samples with known samples. Because of the lack of leads, the
case quickly became inactive, but it was reopened in March 2006 when CODIS
found a match to the DNA sample that had been submitted in 2003. The
Arlington Police Department identified appellant as the match and obtained
arrest and search warrants to get a buccal swab.2 The DNA evidence taken
from the crime scene positively matched the DNA evidence obtained from
appellant’s buccal swab.
2
… Detective Nutt testified that a buccal swab is similar to a long Q-tip,
which he rubbed in between appellant’s cheek and gums to collect a DNA
sample.
3
A grand jury indicted appellant for aggravated robbery. At trial in May
2007, appellant requested a lesser included charge of robbery, which the trial
court denied. A jury convicted appellant of aggravated robbery with a deadly
weapon, a firearm, and recommended punishment at fifty-five years’
confinement, which the trial court assessed accordingly. Appellant timely filed
this appeal.
III. Sufficiency of the Evidence
In his first two points, appellant claims that the evidence was legally and
factually insufficient to identify him as the person who robbed the Paradise
Liquor store.
A. Standard of Review
1. Legal Sufficiency
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all the evidence in the light most favorable to the prosecution in order
to determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw
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reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the
sole judge of the weight and credibility of the evidence. See T EX. C ODE C RIM.
P ROC. A NN. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919
(Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we
may not re-evaluate the weight and credibility of the evidence and substitute
our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735,
740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Instead, we
“determine whether the necessary inferences are reasonable based upon the
combined and cumulative force of all the evidence when viewed in the light
most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.
Crim. App. 2007). We must presume that the fact-finder resolved any
conflicting inferences in favor of the prosecution and defer to that resolution.
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.
The sufficiency of the evidence should be measured by the elements of
the offense as defined by the hypothetically correct jury charge for the case.
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Bowden v.
State, 166 S.W.3d 466, 470 (Tex. App.—Fort Worth 2005, pet. ref’d). Such
a charge would be one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily restrict the State’s theories of liability, and
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adequately describes the particular offense for which the defendant was tried.
Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001); Malik, 953
S.W.2d at 240. The law as authorized by the indictment means the statutory
elements of the charged offense as modified by the charging instrument. See
Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).
2. Factual Sufficiency
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.
State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether
the evidence supporting the conviction, although legally sufficient, is
nevertheless so weak that the fact-finder’s determination is clearly wrong and
manifestly unjust or whether conflicting evidence so greatly outweighs the
evidence supporting the conviction that the fact-finder’s determination is
manifestly unjust. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23
S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,
we must determine, with some objective basis in the record, that the great
weight and preponderance of all the evidence, though legally sufficient,
contradicts the verdict. Watson, 204 S.W.3d at 417.
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In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not
enough that this court “harbor a subjective level of reasonable doubt to
overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly
wrong or manifestly unjust simply because we would have decided differently
than the jury or because we disagree with the jury’s resolution of a conflict in
the evidence. Id. W e may not simply substitute our judgment for the fact-
finder’s. Johnson, 23 S.W .3d at 12; Cain v. State, 958 S.W.2d 404, 407
(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result
is appropriate, we must defer to the jury’s determination of the weight to be
given contradictory testimonial evidence because resolution of the conflict
“often turns on an evaluation of credibility and demeanor, and those jurors were
in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.
Thus, we must give due deference to the fact-finder’s determinations,
“particularly those determinations concerning the weight and credibility of the
evidence.” Id. at 9.
An opinion addressing factual sufficiency must include a discussion of the
most important and relevant evidence that supports the appellant’s complaint
on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
Moreover, an opinion reversing and remanding on factual insufficiency grounds
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must detail all the evidence and clearly state why the finding in question is
factually insufficient and under which ground. Goodman v. State, 66 S.W.3d
283, 287 (Tex. Crim. App. 2001); Johnson, 23 S.W.3d at 7.
B. Analysis
To convict appellant of aggravated robbery, the State was required to
prove that appellant, in the course of committing theft and with intent to obtain
or maintain control of property, intentionally or knowingly threatened or placed
another in fear of imminent bodily injury or death while using or exhibiting a
deadly weapon. T EX. P ENAL C ODE A NN . §§ 29.02, 29.03 (Vernon 2003);
Robinson v. State, 596 S.W.2d 130, 132 (Tex. Crim. App. 1980); Chandler v.
State, 855 S.W.2d 38, 41 (Tex. App.—Fort Worth 1993, no pet.). Appellant
argues that the evidence was legally and factually insufficient because neither
witness could identify him as the person who robbed the Paradise Liquor store.
However, the Texas Court of Criminal Appeals has held that DNA evidence is
admissible to prove identity. Glover v. State, 825 S.W.2d 127, 128 (Tex.
Crim. App. 1992); King v. State, 91 S.W.3d 375, 380 (Tex. App.—Texarkana
2002, pet. ref’d).
At trial, Wafayee and Corral testified that they were unable to identify the
robber because initially he wore a mask and because when the mask was
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removed during the struggle, the robber’s face was covered with blood.3
However, after the incident, the police collected evidence including the black
ski mask, a blood swab, and scalp tissue with hair. 4 Carolyn Van Winkle, who
worked in the Tarrant County Medical Examiner’s office, tested the blood on
the ski mask and the blood sample and determined that the profiles obtained
from the evidence were from the same male donor.5 Detective Nutt submitted
the data into CODIS, but CODIS did not contain a match for the DNA until
March 2006. Once CODIS found a match, Detective Nutt identified the match
as appellant and obtained a buccal swab. Van Winkle tested the buccal swab
and determined that the two DNA samples she previously had tested matched
the DNA evidence from appellant’s buccal swab. In 2007, at the State’s
request, Van Winkle tested the scalp sample, which also matched appellant’s
3
… Wafayee also testified that he could not identify appellant in a photo
line-up.
4
… Appellant also argues that the State did not properly identify the
evidence collected at the scene as the items tested for DNA evidence.
However, crime scene investigator Isbell testified that she collected, packaged,
and sealed a blood sample, scalp tissue, and a black ski mask from the liquor
store. Medical examiner Carolyn Van Winkle testified that she received the
evidence in sealed conditions and that the seals had not been tampered with.
Additionally, Isbell’s initials were on the seals of the exhibits.
5
… Van Winkle testified that she did not test the scalp sample because
when she received multiple samples in one case, she limited the amount of
samples that she tested.
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DNA profile. Van Winkle testified that the likelihood that appellant was not the
donor of the DNA evidence collected at the Paradise Liquor store was one in
9.5 quadrillion.
After reviewing all of the evidence, we conclude that it shows that the
DNA samples obtained from the Paradise Liquor store, which included the ski
mask, the blood swab, and the scalp tissue, matched appellant’s DNA profile
collected from the buccal swab. Thus, the DNA evidence proved appellant’s
identity as the perpetrator of the Paradise Liquor store robbery in March 2003.
See Glover, 825 S.W.2d at 128; King, 91 S.W.3d at 380. Therefore, viewing
all of the evidence in the light most favorable to the verdict, we hold that a
rational trier of fact could have found beyond a reasonable doubt that appellant
committed aggravated robbery. See T EX. P ENAL C ODE A NN. § 29.03; Jackson,
443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. When
viewing all of the evidence in a neutral light, we hold that the evidence
supporting the conviction is not so weak that a reasonable juror’s determination
is clearly wrong and that any conflicting evidence does not greatly outweigh the
evidence in support of the conviction so that a juror’s determination is
unequivocally unjust. See Watson, 204 S.W.3d at 414-15, 417; Drichas, 175
S.W.3d at 799; Johnson, 23 S.W.3d at 11. We overrule appellant’s first and
second points.
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IV. Lesser Included Offense of Robbery
In his third point, appellant argues that the trial court erred by not
submitting the lesser included offense of robbery to the jury.
A. Standard of Review
We use a two-step analysis to determine whether an appellant was
entitled to a lesser included offense instruction. Hall v. State, 225 S.W.3d
524, 528 (Tex. Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666,
672- 73 (Tex. Crim. App.), cert. denied, 510 U.S. 919 (1993). First, the lesser
offense must come within article 37.09 of the code of criminal procedure. T EX.
C ODE C RIM. P ROC. A NN. art. 37.09 (Vernon 2006); Moore v. State, 969 S.W.2d
4, 8 (Tex. Crim. App. 1998).
An offense is a lesser included offense if . . . it is established by proof of
the same or less than all the facts required to establish the commission of the
offense charged.” T EX. C ODE C RIM. P ROC. A NN. art. 37.09(1); see also Hall, 225
S.W.3d at 536. This inquiry is a question of law. Hall, 225 S.W.3d at 535.
It does not depend on the evidence to be produced at the trial but is performed
by comparing the elements of the offense as they are alleged in the indictment
or information with the elements of the potential lesser included offense. Id.
at 525, 535-36.
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Second, some evidence must exist in the record that would permit a jury
to rationally find that if the appellant is guilty, he is guilty only of the lesser
offense. Id. at 536; Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App.
2005); Rousseau, 855 S.W.2d at 672-73. The evidence must be evaluated in
the context of the entire record. Moore, 969 S.W.2d at 8. There must be
some evidence from which a rational jury could acquit the appellant of the
greater offense while convicting him of the lesser included offense. Id. The
court may not consider whether the evidence is credible, controverted, or in
conflict with other evidence. Id. Anything more than a scintilla of evidence
may be sufficient to entitle a defendant to a lesser charge. Hall, 225 S.W.3d
at 536.
B. Analysis
Appellant argues that he was entitled to a charge on the lesser included
offense of robbery because there was some evidence that the gun he used was
not capable of firing, and thus the gun could not qualify as a deadly weapon.
The Texas Penal Code defines robbery as follows:
(a) A person commits an offense if, in the course of committing
theft . . . and with intent to obtain or maintain control of the
property, he:
(1) intentionally, knowingly, or recklessly causes bodily
injury to another; or
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(2) intentionally or knowingly threatens or places
another in fear of imminent bodily injury or death.
T EX. P ENAL C ODE A NN. § 29.02(a). Robbery becomes aggravated robbery if the
offender uses or exhibits a deadly weapon. Id. § 29.03.
Appellant has satisfied the first requirement because robbery is a lesser
included offense of aggravated robbery. Ex Parte Walton, 626 S.W.2d 528,
530 (Tex. Crim. App. 1981); Russell v. State, 804 S.W.2d 287, 289 (Tex.
App.— Fort Worth 1991, no pet.). We must next determine if there is some
evidence that if appellant is guilty, he is guilty only of the lesser offense. See
Hall, 225 S.W.3d at 536; Salinas, 163 S.W.3d at 741; Rousseau, 855 S.W.2d
at 672-73.
The Texas Penal Code defines a deadly weapon as
(A) a firearm or anything manifestly designed, made, or adapted for
the purpose of inflicting death or serious bodily injury; or
(B) anything that in the manner of its use or intended use is capable
of causing death or serious bodily injury.
T EX. P ENAL C ODE A NN. § 1.07(a)(17) (Vernon Supp. 2007). Thus, if the State
proves at trial that a firearm was used in the commission of a robbery, the
firearm meets the statutory definition of deadly weapon. Thomas v. State, 821
S.W.2d 616, 620 (Tex. Crim. App. 1991). Additionally, the State is not
required to verify that the firearm was actually capable of causing death, either
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in the manner of its actual use or in the manner of its intended use. Id.; see
also Walker v. State, 543 S.W.2d 634, 636-37 (Tex. Crim. App. 1976) (holding
that a .45 automatic was a deadly weapon even though missing a firing pin and
without a clip because it was manifestly designed and made for the purpose of
inflicting death or serious bodily injury, which was evident to the senses and
understanding of the victim).
Here, the gun Corral wrestled away from appellant did not fire when
Corral attempted to shoot appellant as he was leaving. Investigator Isbell
collected the gun, and Arlington Police Department range master Keith Scullin
fired the gun and testified that it was operable. Regardless, even if the gun
was not functioning at the time of the robbery, it qualified as a firearm and thus
a deadly weapon. See Thomas, 821 S.W.2d at 620-21; Walker, 543 S.W.2d
at 637. Because appellant used and exhibited a deadly weapon during the
course of robbing the Paradise Liquor store, he cannot be guilty only of robbery;
thus, the trial court did not err by refusing to submit the lesser included charge
of robbery to the jury. See Hall, 225 S.W.3d at 536; Thomas, 821 S.W.2d at
620; Walker, 543 S.W.2d at 636-37. We overrule appellant’s third point.
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V. Conclusion
Having overruled appellant’s three points, we affirm the trial court’s
judgment.
PER CURIAM
PANEL F: LIVINGSTON, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: June 12, 2008
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